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08/21/2005

Affirmative Action--Posner's Comment

I have a slightly kindlier view of affirmative action than Becker does, though I agree with most of his points: specifically, that affirmative action harms the ablest beneficiaries of it by casting doubt on their ability; that it places many of them in situations in which they are bound to fail or cluster at the bottom because they have been admitted to a school or given a job that is above their level; and that remedial education is unlikely to be effective after early childhood.
But there are three areas in which preferences that are often (though not necessarily correctly) described as affirmative action seems to me defensible:
1. Situations in which race, sex, ethnicity, etc. is a legitimate job qualification. An obvious case is casting a black man as Othello and a white woman as Desdemona in a performance of Othello. A subtler case is making sure that in a prison or jail the vast majority of whose inmates are black there are some black correctional officers in supervisory positions; this is important for alleviating racial tensions. (See my opinion in Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996).) I would go further and say that if an all-male prison wanted to hire just male guards, or an all-female prison just female guards, I would permit this, although the courts disagree.
2. Situations in which a private firm or other private entity practices affirmative action in response to customer preference or to ward off adverse legal action. A firm that sells primarily to blacks might want to give a preference to black applicants for sales positions or insist that its advertising agencies include black models in their advertisements for the firm's products. Similarly, if a firm fears that it will be sued for discriminating against blacks, it should be allowed to favor blacks in hiring in order to reduce its legal risks.
These are situations in which affirmative action is prima facie efficient because it is being adopted voluntarily by a private, competitive institution, presumably as a profit-maximizing, cost-minimizing response to competitive pressures. (Of course not all private institutions are commercial, but the noncommercial ones, universities for example, do face competitive pressures and do need to economize.) I don't think government should interfere with such choices.
This by the way is not to say that firms controlled by blacks, say, should be permitted to discriminate against whites. That would not be affirmative action, which refers instead to discrimination in favor of the group that controls the discriminator.
3. Situations in which the only beneficiaries of affirmative action are black. Most of my examples of affirmative action have involved blacks rather than women, Hispanics, etc. My reason for that choice is that realism requires recognition that blacks are, for whatever reason or combination of reasons, in far the worst position, so far as health, prosperity, educational achievement, intermarriage, and other measures of success and integration, of any other major group in American society. Women, Jews, Asians, and other traditional victims of discrimination or newcomers or outsiders have all advanced to positions of essential parity with male WASPs, but blacks have lagged badly in relative terms. A situation in which 12 percent of the population is lagging badly behind the rest of the population is not healthy. I don't think affirmative action for blacks does much to promote their integration and sense of belonging in this society, but it probably does a little (notwithstanding Becker's correct point about the negative effect of affirmative action on self-esteem). Without affirmative action, elite educational institutions and other elite institutions (probably including the officer corps of the military) would have virtually no blacks, and this would underscore the gulf in achievement in a dramatic way that would be potentially harmful to social peace. Colin Powell was a beneficiary of affirmative action and his well-deserved public success and prominence is probably good for black morale.
Category 3 is perhaps the only "real" affirmative-action category. Such a classification would be consistent with Becker's treatment.
What is unfortunate is that although the only real case for affirmative action (outside my first two categories) concerns blacks, naturally other groups, seeing the potential benefits of discrimination in their favor, have climbed on the affirmative action bandwagon, often with ludicrous results, notably in the case of white, well-to-do, accentless, fully integrated Americans of Hispanic ancestry. I well remember a conference I attended at which a law professor named Delgado advocated affirmative action for persons of color, among whom he counted himself. However, as if often true of persons of Spanish ancestry, his black hair crowned a very pale face. He was in fact the whitest person in the room, had no foreign accent, and by his presence had in effect converted "people of color" into a purely political category.
So I would like to see affirmative action confined and diminished, but I would not press for its abolition. I especially would not favor judicial abolition in the name of equal protection of the laws. Not that a powerful legal case can't be made; but it seems odd that the courts should strain to intervene on the side of majority rights, since the majority should be able to protect its interests in the democratic political process, without having to run to the courts. In addition, it is doubtful that the courts could effectuate a ban on affirmative action. As Becker points out, states have tried and failed, since such a ban can be circumvented in a variety of ways, such as by reducing or eliminating the weight given to meritocratic criteria in selecting for colleges or jobs.
One final point. Given my category 2 above, the problematic area of affirmative action is largely confined to government employment, public universities, public contracting, and other government activities. In many of those activities, personnel practices are not meritocratic, but political, nepotistic, or simply slack and inefficient because of lack of economic incentives. If criteria are not meritocratic to begin with, injecting affirmative action may not reduce efficiency. I infer that the aggregate social costs of affirmative action probably are not great--though neither are the benefits.

Comments

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A white woman playing Othello comes in no way closer to Shakespeare's "original intent" -- whatever that means.

It might make for an interesting, perhaps comic, performance. Or maybe an interesting serious performance. But theater directors ought to have the choice of selecting only black males for the Othello role, and white women for the Desdemona role, since that is the race and sex of the characters in the play as written.

I don't care very much about affirmative action, but I do about Shakespeare.

Whatever happened to the days when every student was confronted by their Academic advisor on their first day with, "Well, according to your records you're a graduate of an accredited State High School and we have to accept you, but that doesn't mean we have to keep you." Clearly, many are now being kept. Oh that's right, PC has overwhelmed the campus. ;)

"That is, if blacks do better than their LSAT scores would suggest, that would imply an adjustment in scores to make the test better at measuring likely success in law school. (Is there any data on this?)"

Prof. Henderson's research suggests that LSAT predicts performance on the most common type of law school exam well, so by inference people who are preferenced in would need to be preferenced on exams as well or the "cluster towards the bottom" effect is likely. However the LSAT does NOT predict other types of exams well.

Of course _expanding_ AA beyond admission would be radically unpopular on all sides. I suggest that there is a better way: simply diversify the type of exams. Not only will that broaden the scope of education, it would give more people an opportunity to take a test that fits the approach they have mastered. Schools that serve different neighborhoods and socio-economic classes often have radically different curricula.

Diversifying law school exams would cause the LSAT people to think about diversifying their test, since their goal is to sell a correlation to law school performance.

Using more diverse merit criteria is bound to flatten the performance curve, which will annoy the law firms. They are seeking a correlation between law school performance and job skills. But this is the area where meritocracy breaks down anyway, because students, professors, and firms often agree that law school doesn't teach law practice.

Ultimately, we need to admit that there is more to success than scoring well on a test. Adding "diversity values" into the merit criteria is the first step towards that.

Indeed, school does not teach practice; practice teaches practice. But throwing around words like "diverse" and "holistic" when referring to education is a warning sign of silly, soft, useless, relativist modern education principles.

Why do black students "crowd toward the bottom" on LSAT scores and timed exams but not on the other "diversified" means of evaluation you hint at vaguely? Is this indicative of a shortcoming in the LSAT, or a shortcoming in the methods used to grade non-timed and subjective exams?

Plenty of other parts of the application besides standardized test scores should and do play a role in why a school selects a student; even a 1600 on the old SAT would not have given you a lock on undergrad admission to an Ivy. But the standardized test itself should be rigorously objective, the one part of the application in which all people's ability in something can be compared quantitatively. If it starts involving holistic scoring and rubrics and evaluating that candidate as a _person_, not just some faceless test-taker, it loses its objectivity.

Why do schools with different socioeconomic backgrounds have radically different curricula? Students should be taught proficiency in reading, writing, and math, not in being cooperative group-workers and receptive accepters of differences in chemical imbalances. There is nothing 'holistic' or 'diverse' about basic skills; they are same in all communities and essential for everyone.

As someone who has benefited from standardized tests, I admit that they test one thing: proficiency at standardized tests. The SAT tests a certain amount of basic knowledge, but the LSAT tests 2 things, basically: deductive reasoning skills and speed. The former is important to proficiency at law; the latter is somewhat less important, though it is important to taking 3-hour law school exams.

Many people argue that "speed" is highly correlated with intelligence. So the LSAT is, basically, an IQ test. Of course, as with any test, practice and familiarity with the subject matter can improve one's score. So an LSAT score is a composite of one's IQ and one's familiarity with solving problems of deductive reasoning.

The current system of LSAT tests and law school exams helps a certain class of people rise to the top: those with a capacity to memorize a basic set of legal rules and apply them, quickly, to analyze problems. This is probably the same subset of the population that scores well on Jeopardy. It's not necessarily the subset that wins nobel prizes or becomes the leaders of government or the captains of industry.

To me, the LSAT and law school exams fail to test three things that are very important in law practice, or in the practice of any field: creativity, "judgment," and social skills. The exams reward humans who process information like computers. But computers do not necessarily have any sense of right and wrong, they are decidedly uncreative, and they can be socially awkward. The process that makes someone editor of the Harvard Law Review does not necessarily produce the best all-around leader or thinker. Sometimes those with the most to offer the world, in the long run, are more reflective and creative and a bit less precise. But we can measure computing skills objectively, so we do.

"If it starts involving holistic scoring and rubrics and evaluating that candidate as a _person_, not just some faceless test-taker, it loses its objectivity."

That is a fair statement. I would point out that I am more than willing to sacrifice some narrow formal objectivity in the hopes of getting a broader look. As I said, the pressure for standardization can be self-reinforcing. You almost have to exclude things like (as David mentions) "creativity, "judgment," and social skills" in order to achieve objectivity. Those things are a matter of common discretion.

But non-objective factors DO contribute to success, I would hope we can all agree on that.

We are to the point now where few people can imagine our system without standardized tests, but they were not always so prominent (think of the old apprentice system of law.)

This does relate to AA in the sense that AA is trying to correct a performance gap on a test that (some say) would not have a gap if it properly valued "non-objective" factors.

But you are still missing the point. Are there not many factors on an application besides the standardized test? Can we not define them as more subjective and often useful measures of merit? De-objectify standardized tests, and you make them lose what use they have. Just look at the new SAT. The SAT's inability to judge somebody's moral character does not invalidate their ability to judge certain thinking skills.

I would question the relevance of sickeningly nice words like 'creativity' to law school. Very few lawyers go on to do anything unique, or nobly defend a great legal cause. Many are stuck in office jobs that involve much knowledge of obscurity and repetitive, meaningless machine-like behavior. Imagining that it's law schools' job to select and develop those who are going to go on to be 'great leaders' is decidedly romantic. For the most part, their job is to spit out people with law degrees.

Those with the potential to be great will likely have the initiative and natural creativity to do so regardless of whether or not they are accepted into an Ivy-level school. Such schools can undoubtedly aid them by providing some of the best professors in the field and the best connections in the profession, but the schools cannot, will not, and probably should not mold every student into beautiful individuals with sound moral judgment and a desire to change the world.

The intangibles that make people unique should, indeed, be cultivated -- but parents and the individuals themselves are far more able to do this than can schools. It is up to the student to do something creative with his rather dull law eduction. When the teachers start attempting to 'diversify' and be 'creative' to reach all 'learning styles' and all that other modern relativist nonsense, they lose focus of the basics that are so essential to building a decent thinker.

There is a testing gap because inner city schools and inner city culture do a terrible job of teaching. Period. 'Diversifying' curricula to get around this fact only distracts from our obligation to improve these people's education.

"But you are still missing the point. Are there not many factors on an application besides the standardized test?"

Yes but everyone knows that test scores are the most valued. You can thank US News rankings for that. Any school that uses those other factors too heavily risks dropping in the LSAT/SAT/GRE weighted rankings.

"Very few lawyers go on to do anything unique, or nobly defend a great legal cause."

To my mind that is a great argument FOR valuing creativity in law schools. People still secretly like romantic notions. If the schools can select for and/or teach this then I definately think they should. I know you have noticed that the legal profession is often criticized these days.

"'Diversifying' curricula to get around this fact only distracts from our obligation to improve these people's education."

No, diversifying curricula admits to differences in experience and background and stops the tendency to believe that all students must conform to a single standard in order to be judged worthy of success. You seem to be equating "diversifying" with "dumbing down". There is no reason that trying multiple approaches in the hopes of reaching more students means that any of the approaches have to be less rigorous. All it means is the students that do best on the current approach will face some new challenges. To them it might be even more rigorous.

"What exactly does "diversify the type of exams" mean?"

More take-home exams, different time limits (to allow deliberation), higher % of grades based on class participation, including a mix of question types (objective, issue spotter, essay)... the point is that at least for law schools, the strictly-timed-issue-spotter exam is both the most popular and the most duplicative of the LSAT. Therefore, that type of exam is most likely to perpetuate any LSAT "performance gap" (and its popularity worsens the effect).

Diversifying _is_, 97% of the time, dumbing down or wasting time. On the silly notion that people from different backgrounds need to be taught differently to learn the same basic skills, read this study:
http://www.aft.org/pubs-reports/american_educator/issues/summer2005/cogsci.htm
The effectiveness of teaching styles rely on their appropriateness to the subject, not to the student's 'learning style'.

A lack of rigor usually accompanies 'diversification' because of the silly ideas that everybody is a beautiful hard-working successful individual in his way. You'll find more teachers at one 97%-white middle class suburban schools advocating nonsense about the need for varied teaching styles than you will at all inner city schools combined. Schools such as that do not have time for the asinine waste that is most modern education.

Bill - I don't think that Corey is advocating "new math" or standardless testing. He is merely arguing that issue spotting exams test too narrow a range of skills. I understand the importance of issue spotting, and such exams are also fairer, in a sense, because they can be graded more "objectively" than free-form essays. But there is also a good argument that law schools, especially the top schools that are training the future leaders of the profession, should have a broader outlook.

Maybe the answer is that seminars and independent studies give students the opportunity to do that broader type of work, while first-year classes are more akin to Algebra I, which should be objectively graded. On the other hand, much depends on first-year grades (law review, clerkships, second-summer jobs, etc.). I do think that the legal profession places too much emphasis on (1) where someone went to school and (2) what were his/her first-year grades. Even second- or third-year grades really don't say much about someone who is 10 years out of school. I find it rather amazing that the rank of one's law school, or one's performance in law school, continues to matter so much throughout one's career. The academic world is particularly guilty of attaching too much value to these factors. Maybe it's because many academics never practiced law (beyond their clerkships) or practiced for only a few years and never accomplished much in the "real" world.

Just to second that with an anecdote: I am in law school after a successful 8 year career as an Electrical Engineer. I am currently doing on campus interviews for second year internships at large law firms.

I have been asked about my undergraduate GPA (from 10 years ago) 4 times. I have been asked about my many years of substantive work experience ONCE. I had to try and remember that far back and ended up bringing letters from VPs and Chief Scientists at the companies I used to work for hoping to offset this focus.

Its pretty unbelievable that my grades when I was 18 would be used to rank-order me now that I am 30, especially given my "non-traditional" path. This is a direct result (I think) of over-emphasis on "quantifiable" factors. I'll be OK, as a white male that looks good in a suit I have many unfair advantages, but my experience illustrates an irrational result of being too "objective".

Judge Posner‚Äôs defensible areas vis-√†-vis affirmative action are not particularly convincing. Area no. 1 is clearly what will happen in a meritocratic society (without affirmative action laws) ‚Äì hire the person who is best for the job. Similarly, area no. 2 is largely a rationally response to business needs, including the extortional demands of affirmative action laws. In my view, those who seek out a black or a woman or a white person to fill a position they believe a black, a woman or a white person would be most suitable is practicing free choice rather than affirmative action.

In area no. 3, Judge Posner singles out blacks as a particularly worthy of affirmative action because they, as a group, are far worse in many respects. I agree with the need for special attention, but affirmative action (quotas) is, nonetheless, not the right prescription because of the harm (see Becker‚Äôs comments) far outweighs the narrow and superficial benefits. Where I am in strongest disagreement with my hero Judge Posner is his notion of ‚Äúthe court (should not) strain to intervene on the side of majority rights.‚Äù In a free society we compete as individuals (or voluntarily formed groups), a white male who lost his college admission or job promotion as a result of legal discrimination can hardly take consolation that white males on the whole fare far better.

Judge Posner‚Äôs last point about the cost of affirmative action in a non-meritocratic sphere being ‚Äúnot great‚Äù may be true. The problem I have with it is that even though all the non-meritocratic influences, such as political, nepotistic or simple lack of efficiency do exist, they are subject to a combination of legal and economical pressure, affirmative action, or rather the current legal interpretation of it, is a legally protected, self-perpetuating inefficiency.

Corey, I think your problem is more with rankings than consideration of undergraduate GPA. Though getting good grades in a hard major is a plus, getting mediocre grades in hard major is a negative compared to good grades with an easy major. This is the result of schools playing the numbers games with rankings more than anything. Work experience can really set apart a student, but an admissions committee will only make so many exceptions for those kind of plus factors, because they have to keep their 25/75 percentiles up.

But theater directors ought to have the choice of selecting only black males for the Othello role, and white women for the Desdemona role, since that is the race and sex of the characters in the play as written.

This, of course, is as nonsensical as saying that only female roles should be played as women. But during Shakespeare's time, all the female roles were played by men. Likewise, no Moors played Othello in the original productions. If you think a female playing Desdemona is truer to Shakespeare as written, you don't know jack about Shakespeare. If you think an actual Moor playing Othello is truer to Shakespeare as written, you don't know jack about Shakespeare. Why performing Shakespeare the way it was originally written would be comic to you is beyond me. As least historically, Othello has neither been played by a black nor Arab actor. The first time such occurred was in the 1950s, if I do recall correctly -- and it was controversial! More recently, Patrick Stewart headed a production of Othello where he was Othello and the rest of the cast was black. It debuted at the Kennedy Center, if I recall, to critical acclaim.

For someone who says he cares about Shakespeare, you don't seem to know very much at all. It seems you are not a Shakespeare purist, but a purist of another kind altogether.

JACK SPRAT: "Many white people are simply prejudiced and it has nothing to do with affirmative action programs. Affirmative action programs are not the reason why many white people find African-Americans to be less intelligent or less attractive specimens of the human species."

I don't mean to jump in the middle of spats, but, John Kelsey, I think, mis-quoted Jack Sprat by leaving out the above. I have been mis-quoted on here more than once, and I don't think it is fair, especially when the person mis-quoting you is trying to insinuate that you cannot form a cogent argument because you are blinded by your racial animus. I'm not sure why John Kelsey would sink to such a low-level to insinuate that Jack Sprat cannot reason (and to condescend to him so furiously), but I think Jack Sprat's quote (which I cut-and-pasted here) does much to explain John Kelsey's post.

JOHN KELSEY: Any kind of discrimination provides information to people making decisions.

The Nazis garnered much medical information by torturing Jews, which they believed to be subhuman. Under what conditions is it ethical to use it? Whenever anyone can make a claim of benefit? When should we not use it? Whenever any Jew complains? Answer that, John Kelsey.

JOHN KELSEY: Would you prefer a doctor from group A or group B, assuming no other knowledge?

Let's say it's 1990. Your doctor graduated from Yale in 1960, when Yale did not admit any women. Your doctor also happened to be a legacy, whose father attended Yale when it actively discriminated against black applicants (say, black veterans seeking an education via the G.I. Bill). In other words, your doctor's medical degree was paid for by money gained by unfair advantage (less competition to enter graduate school when blacks were actively discriminated against), and was earned unfairly (less competition to enter graduate school because no women were allowed to apply). One might say that someone shielded from full and fair competition is not necessarily the best candidate. Does the fact that your doctor benefited from racism and sexism impel you to refuse his medical services? or do you not even think about that fact that by paying your medical bills you subisidize racism and sexism after the fact, John?

JANE THIRNBOUGH: And, no offense, but how in God's name did we get into Shakespeare?

Given that I've caused a stir, I suppose I should put my own two cents in.

Putting aside whether affirmative action is a successful remedy, the historical fact is that affirmative action was fashioned as a remedy to pre-existing discrimination against blacks. That pre-existing discrimination was not an abstraction; actual white people hated actual black people. The root causes of that racial animus were not caused by affirmative action, because the racial animus antedates the remedy. To argue otherwise would be as absurd as saying that Southerners only began publicly to express animus toward blacks after the Civil War, or that the 13th Amendment caused blacks to be enslaved. The racial animus not only antedated affirmative action, but it postdated it as well; as the Congress recently noted, lawless public lynching by white mobs continued well past the passage of the Civil Rights Act. Majority opinion amongst whites that race-mixing is wrong persisted until the late Eighties. Unless one believes that no white people in the nation today share the same racial animus that has historically afflicted this country, then we agree that this racial animus -- which, though now detached from the apparatus of government and not en vogue in academia, is social and public -- is still extant. Getting rid of affirmative action will not get rid of this racial animus, because affirmative action is not the root cause of the racial animus. It never was.

What I have just said is neither controversial nor is it inapposite to historical fact. I suppose one could deny it, but one could also deny the Holocaust. Just to make things easier, if you disagree with my analysis, just write a one sentence reply:

"I am a Holocaust-denier."

Any takers? John Kelsey?

P.S. I doubt anyone will bite. After all, such comments are totally inappropriate when made against Jews (as they should be), but, somehow, wholly appropriate when made in regard to blacks. (Not to mention that anyone who criticizes this phenomenon is 'playing-the-race-card'.) I daresay racial animus plays a role. But, hey, what do I know? I'm a nigger, right, John Kelsey?

"Why are we assuming that blacks lack basic skills simply because they are black?"

I don't think we are, I am certainly not. On average, there is a difference in performance on standardized tests (like the SAT) for blacks. It is a demonstrable fact. Of course that says nothing about individuals, many of whom get tremendous scores. The average gap is almost certainly influenced by socio-economic class and by still entrenched discrimination, but apparently the gap is shrinking, which is great.

But a gap in performance on a test only implies a gap in basic skills if the test measures basic skills. Given the lengthy criticisms of just about every standardized test out there, we shouldn't assume they do that well.

"the problematic area of affirmative action is largely confined to government employment, public universities, public contracting, and other government activities. In many of those activities, personnel practices are not meritocratic, but political, nepotistic, or simply slack and inefficient because of lack of economic incentives."

Posner once again displays his irrational bias against the public sector. From what I have observed, the private sector is no less "political, nepotistic, slack, and inefficient" than the public sector.

Of course, it would be nice to see a scientific study of this. If there were, I think the radical free-enterprise set would be in for a shock. The public sector routinely does more for less money than the private sector could ever imagine. I point again to the value that the public sector gets from Judge Posner, for instance, or from Assistant U.S. Attorneys, FBI agents, military personnel, and other gov't employees who are underpaid and have inferior resources but do consistently excellent work. And, anyone who says that politics and nepotism don't play a large role in the private sector is blind to reality.

Hey Jack! Chill! Not all of us are out to hang one from the nearest tree or lightpole. As a matter of fact, My 5 great-grandfather manumitted his slaves back in 1790 when he become convinced of the evil of that peculiar institution. My 2 g uncle ended up being shot in the head at Atlanta while with Gen. Dodge although he survived. Another, lost a leg at Knoxville, while my 2 g grandfather was wounded and captured at New Market and near starved to death at Libby Prison. From which he never really recovered. All in the name of the Black man.

C'mon quit whining, you guys wee emancipated years ago. Get with the program.

But there are three areas in which preferences that are often (though not necessarily correctly) described as affirmative action seems to me defensible:At the international level, ethnic homelands (countries that exist to grant or deny certain privileges on the basis of race or ethnicity) are often justified by the same reasoning that is used to justify affirmative action in the United States.While affirmative action in the United States seems rather benign, ethnic homelands have done and continue to do some really nasty stuff. There are two ideas that I take issue with specifically: that justice should be dispensed on a racial level and that victims are entitled to compensation from society in general.That is not to say that I am opposed to dispensing justice on an individual level - I just see no reason for (and plenty of reasons against) dispensing justice on a racial level. There may also be circumstances where it is appropriate for the victimizer to compensate the victim but, while society may have an obiligation to prevent people from becoming victims, it does not have an obligation to compensate victims generally.